Judgment.- The defendant is the appellant. The Second Appeal is directed against the Judgment of the Additional Subordinate Judge, Kakinada, in Appeal Suit No. 96 of 1960 reversing that of the District Munsif, Peddapuram, in OS. No. 32 of 1959, and decreeing in part the plaintiff’s suit for damages for malicious prosecution, with costs throughout. The plaintiffs’ case was briefly as follows: The plaintiffs are brothers and are residents of the village of Madhavapuram. The first plaintiff is a respectable person holding several honorary office. The defendant is also a resident of the same village and is inimically disposed towards the plaintiffs. In a contest between him and the first plaintiff for Presidentship of the Panchayat Board, the defendant was defeated and his request to make him Vice-President was turned down by the first plaintiff. He, therefore, bore ill-will towards the first plaintiff. The defendant filed a criminal case, C.C. No. 724 of 1957 on the file of the Judicial Second Class Magistrate, Pithapuram, against the plaintiffs and eleven others alleging that the farm-servant of the first plaintiff had made two vents while there used to be only one vent in the bund between the land of the defendant and that of the first plaintiff with the result that the defendant’s land had been flooded. When the defendant brought the elders or the village to the field to show them how the first plaintiff had acted high-handedly, the second plaintiff, at the instigation of the first plaintiff, pushed the defendant aside and the 2nd plaintiff and eleven others attempted to beat the defendant with sticks. The elders intervened and prevented further trouble. Subsequently, the defendant filed a complaint under sections 147, 427 and 352, Indian Penal Code, before the Judicial Second Class Magistrate, Pithapuram. After a protracted trial the case, however, ended in acquittal. Thereafter the plaintiffs brought the present action alleging that the defendant had launched a prosecution against the plaintiffs maliciously and without reasonable and probable cause and claimed damages for loss of prestige and reputation in a sum of Rs. 1,450 and for the expenses of the criminal case of Rs. 550. Thereafter the plaintiffs brought the present action alleging that the defendant had launched a prosecution against the plaintiffs maliciously and without reasonable and probable cause and claimed damages for loss of prestige and reputation in a sum of Rs. 1,450 and for the expenses of the criminal case of Rs. 550. The defendant resisted the suit asserting that it was a fact that the plaintiffs and their men had made two vents in the bund separating the lands and inundated the entire field of the defendant, and when the defendant tried to close the vents he was assaulted by the second plaintiff and others at the instigation of the first plaintiff, and that the allegations in the criminal complaint were not without reasonable and probable cause, nor did the defendant bear any malice towards the plaintiffs or their men. At the trial the plaintiffs examined themselves as P.Ws. 1 and 2 besides examining three others as P.Ws. 3, 4 and 5 to prove their case, while the defendant examined four witnesses in all including himself. The plaintiffs filed eighteen documents while the defendant filed one document. The central issue which was framed by the trial Court was whether the defendant had prosecuted the plaintiffs without reasonable and probable cause and maliciously. The trial Court referred to the relevant case-law relating to actions for malicious prosecution and noted the essential elements to be proved by the plaintiff, namely, (1) that the plaintiff was prosecuted by the defendant; (2) that the prosecution had terminated in the plaintiffs favour; (3) that the defendant in prosecuting the plaintiff had acted without reasonable and probable cause; and (4) that the defendant was actuated by malice. Bearing these principles in mind, the District Munsif examined the evidence adduced by the plaintiffs and holding that from the mere fact that the accused had been acquitted in the criminal case, it did not ipso facto follow that the prosecution had been launched without reasonable and probable cause or maliciously, found: “From the facts of the case I am unable to hold that the criminal proceedings were launched by the defendant out of malice and without reasonable and probable cause. It was not begun in malice without probable cause to believe that it can succeed. It was not begun in malice without probable cause to believe that it can succeed. I therefore hold that the plaintiffs have not sustained any damage of their reputation or prestige as a result of the criminal complaint filed by the defendant. Equally, they are not entitled to recover the sum of Rs. 550 being the costs of the criminal case incurred by them.” In the result, the trial Court dismissed the suit with costs. Thereupon the plaintiffs went up in appeal to the Subordinate Judge’s Court, Kakinada, and the appeal was heard by the Additional Subordinate Judge. The learned Judge correctly noted the crucial elements which had to be proved by the plaintiff in a suit for damages for malicious prosecution but without adverting, much less considering, the evidence adduced by the plaintiffs and the defendant in the instant case, proceeded todeal with the matter on a priori reasoning based upon certain circumstances such as, the non-examination of witnesses mentioned in the criminal complaint, the discrepancy as to the existence of one vent or two vents, and the fact that while the criminal case was pending, the defendant had filed several applications for transfer of the case. From these circumstances the learned Judge proceeded to infer want of reasonable and probable cause and malice on the part of the defendant in launching the prosecution. But the mere fact that two of the witnesses mentioned in the original complaint had not been examined in the suit, may not by itself establish the falsity of the defendant’s case, if the defendant is able to give a satisfactory explanation as to the non-examination of those witnesses. Again, the discrepancy as to the exact number of vents may not be decisive of the question whether the complaint filed by the defendant was utterly false because the complaint alleged the flooding of the defendant’s land as a preliminary to the assault on him by the two plaintiffs and their men. There is no reference at all in the judgment of the lower appellate Court to the alleged assault and there is no finding as to the truth or otherwise of that allegation. In the criminal case the charges were in respect of rioting, mischief and assault. The lower appellate Court altogether ignored the vital point that the burden lay on the plaintiffs to establish want of reasonable and probable cause as well as malice. In the criminal case the charges were in respect of rioting, mischief and assault. The lower appellate Court altogether ignored the vital point that the burden lay on the plaintiffs to establish want of reasonable and probable cause as well as malice. No attempt was made to discuss the evidence adduced by the plaintiffs and the defendant and to decide which of the versions was true. The learned appellate Judge was in error in thinking that the decided cases lay down that malice may be inferred from want of reasonable and probable cause. On the other hand, the decisions insist on the co-existence of the two elements. It may be that in an extreme case where a Court is able to reach a conclusion that the entire incident which formed the subject matter of the criminal complaint was an invention and it did not take place at all, it may be possible to infer malice, But that has not been found in the present case. The lower appellate Court fell into another error in thinking that because the defendant had filed two applications tor transfer before the Sessions Court and one application before the High Court, they were intended to protract the proceedings before the criminal Court and harass the plaintiffs, and that showed malice on the pa:t of the defendant. The transfer applications would have been filed by the defendant apparently because he apprehended that there may not be a fair trial before that particular Magistrate. It is hardly likely that he would have done it merely to spite the plaintiff by protracting the proceedings.Apart from the above defects, the judgment of the lower appellate Court suffers from one grave infirmity and that is, that the lower appellate Court has not discussed and considered the evidence adduced before the civil Court with a view to deciding whether the plaintiffs had succeeded in establishing malice and want of reasonable and probable cause. It was pointed out by a Division Bench of the Allahabad High Court in Shubrat v. Shams-ud-Din1. “In our opinion the judgments of the criminal Courts are conclusive for the purpose of showing that the prosecution terminated in favour of the plaintiff, but we doubt if the findings of the criminal Courts by themselves are any evidence of the malice or want of reasonable and probable cause. “In our opinion the judgments of the criminal Courts are conclusive for the purpose of showing that the prosecution terminated in favour of the plaintiff, but we doubt if the findings of the criminal Courts by themselves are any evidence of the malice or want of reasonable and probable cause. It is for the civil Court to go into all the evidence and decide for itself whether such malice or cause existed or not.” Similar was the view of Bhagwati, J., in Dhanjishaw Rattanji v. Bombay Municipality2. In the course of an instructive and exhaustive judgment, reviewing the entire case law on the subject of malicious prosecution, the learned Judge observed at page 326 as follows: “The judgment of the criminal Courts would be conclusive for the purpose of showing that the prosecution terminated in favour of the plaintiff. It is for the civil Court, however, to go into all the evidence and decide for itself whether there was want of reasonable and probable cause for the prosecution and whether there was also malice: See Gulabchand v. Chunilal3 and Shubrati v. Shams-ud-din1. The burden of proving that the prosecution was instituted against him without any reasonable and probable cause is also on the plaintiff.” It would be seen therefore that in an action for malicious prosecution it is not open to the civil Court to rely on the findings recorded by the criminal Court or the evidence adduced before the criminal Court, to reach the conclusion as to he existence of malice and the absence of reasonable and probable cause; but it is incumbent upon the civil Court to examine the evidence adduced before it and adjudge on that evidence irrespective of the view expressed by the criminal Court, is to the credibility of witnesses examined before it or the findings recorded by the criminal Court. In the present case, the lower appellate Court has made no attempt to assess the evidence adduced by the parties in the civil Court, and it has reversed the decision of the trial Court relying on certain circumstances which, to say the least, are hardly conclusive. In the present case, the lower appellate Court has made no attempt to assess the evidence adduced by the parties in the civil Court, and it has reversed the decision of the trial Court relying on certain circumstances which, to say the least, are hardly conclusive. This Second Appeal is, therefore, allowed ; the judgment and decree of the lower appellate Court (Subordinate Judge’s Court, Kakinada) are set aside, and the case is remanded to that Court with a direction to re-hear the appeal presented to it in the light of this judgment, and in particular, to consider the evidence adduced in the civil Court, bearing in mind the essential ingredients which a plaintiff has got to prove in an action for damages for malicious prosecution. Costs will abide the result. The Court-fee paid on the Memorandum of Second Appeal will be refunded to the appellant. (No leave). A.B.K. ----- Appeal allowed; matter remanded.